Opinion
24A-CR-1199
12-26-2024
Billy Gene Luke, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria N. Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Dearborn Superior Court The Honorable Sally A. McLaughlin, Judge Trial Court Cause No. 15D02-2403-F6-71
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria N. Sons Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶ 1] Billy Gene Luke appeals his convictions for three counts of Level 6 felony intimidation following a jury trial. Luke presents three issues for our review:
1. Whether the trial court abused its discretion when it denied him his right to self-representation mid-trial.
2. Whether the State presented sufficient evidence to support his convictions.
3. Whether his aggregate sentence exceeds the statutory cap in Indiana Code section 35-50-1-2.
[¶ 2] We affirm.
Facts and Procedural History
[¶3] On January 16, 2024, while incarcerated at the Dearborn County Jail, Luke threatened Correctional Officer Samantha Koller after she had told the inmates, over an intercom system, to pick up some cleaning supplies and start cleaning areas of the jail. In response to Koller's broadcast, Luke went to his cell and used the intercom system to contact Koller in the Control Center. Luke "began screaming" and "cussing" at Koller. Tr. Vol. 2, p. 72. Luke said, "knock it the f*** off with that cleaning bulls***, you . . . Dearborn County inbred hillbilly. You don't tell us what to do, we tell you what to do." Id. Luke also said to Koller:
[You] don't know who [I] know[] and [I] know[] a lot of people to send to [your] house to shoot . . . and kill [you] and [your]
whole family....[You need] to learn to bow down [or I will] slit [your] throat when [I] see[ you].Id. at 73. In response, Koller placed Luke in a "cell lockdown." Id.
[¶ 4] On January 18, Correctional Officer Steve Jackson handed Luke a lunch tray, and Luke stated that Jackson had "violated [Luke's] rights" when he touched his keys before touching Luke's tray. Id. at 104. Luke told Jackson that Jackson "could face a year in prison for that." Id. Jackson instructed Luke to go to his cell, but Luke responded, "f*** you, you b****, mother f***er, I'll beat your ass, you know, come to my cell." Id. at 105. After Luke started walking away, he repeated that he would "beat [Jackson's] f***ing ass." Id.
[¶ 5] A short time later, just after lunch, Jackson and four other correctional officers approached Luke to talk about the incident with the lunch tray. In response to the officers' attempts to discuss the incident with Luke, Luke said that
he had people on his payroll. He would find out where [the officers] lived. He would get [their] driver's license number[s], find out where [they] lived and send someone from Toledo to come down, put . . . gun[s] in [their] mouth[s], drag [them] out in [their] front yard[s] and kill [them].Id. at 107. As a result, officers moved Luke to a disciplinary unit.
[¶ 6] The State charged Luke with three counts of Level 6 felony intimidation. Count 1 was for the threat Luke made to Koller; Count 2 was for the threat Luke made to Jackson during the lunch; and Count 3 was for the threat Luke made to Officer Jackson and the four other officers after the lunch. Prior to trial, Luke moved to sever Count 1 from Counts 2 and 3, but the trial court denied that motion. Luke also asserted his right to self-representation, which the trial court granted. However, during his ensuing cross-examination of Correctional Officer Kevin Daily at trial, Luke asked, "Deputy Daily, is it not true that you cannot be a road patrol deputy because you've had rape allegations by multiple women?" Id. at 99. The prosecutor objected, and the trial court struck the question.
[¶7] Later, during the prosecutor's direct examination of Luke, Luke encouraged the jurors to ask him questions. And Luke stated, apropos of nothing, that Daily had "had rape allegations against him[.]" Id. at 245. The prosecutor objected, and the trial court excused the jury. The court then stated:
The court is going to note for the record that[,] Mr. Luke, after the last objection, was smirking towards the jury, and in addition, again, brought up some allegation that we've only heard and [Luke] has not had it presented in any discovery or evidence. That he believes that one of the officer's [sic] has raped an individual and he was cautioned then not to say that. Also, Mr. Luke was present when we went through jury instruction[s]. Jury instructions . . . were very clear that no witness was to encourage jurors to ask them questions. There was a process that if jurors had a question . . . they thought could be helpful, they were to wait until the person had been examined and cross[-]examined and then they were to raise their hand with their question in writing, give it to the bailiff and then it would be reviewed, whether it was the question that was to be asked. So, Mr. Luke, you're showing that you're not even able to follow the court's instructions that you agreed to. So, [that's] very problematic as we proceed.Id. at 245-46.
[¶ 8] Finally, during the State's cross-examination of Luke, after Luke was not answering a question, the trial court stated, outside the presence of the jury:
The court is going to find that at this point, Mr. Luke has lost his ability to represent himself. [The] Court has given latitude in defendant's right to self-representation. However, the defendant has demonstrated through the totality of his statements and actions that the defendant is unwilling to abide by rules of procedure, [and he] continue[s] to abuse the dignity of the courtroom and the judicial process. These include making a reference that a jail officer . . . has committed rape and then not being responsive to questions, encouraging the jurors to ask questions to him directly in opposition to instructions that were provided and to which the defendant did not object, and the defendant has continued to not follow the court process. So, I'm appointing . . . standby counsel to be his counsel of record.Tr. Vol. 3, p. 3.
[¶ 9] The jury found Luke guilty as charged. The trial court entered judgment of conviction accordingly. In sentencing Luke, the court found that Counts 2 and 3 constituted an episode of criminal conduct under Indiana Code section 35-501-2 but that Count 1 was a separate episode of criminal conduct not subject to that statutory cap. The court imposed consecutive sentences of two and one-half years for Count 1, two years for Count 2, and two years for Count 3. This appeal ensued.
Discussion and Decision
Issue One: Self-representation
[¶ 10] Luke first contends that the trial court erred when it appointed standby counsel mid-trial. As this Court explained in Luke's 2023 interlocutory appeal in another criminal case, "'[w]hether the trial court' violated a defendant's 'right to self-representation is a question of law that we review de novo.'" Luke v. State, 214 N.E.3d 1013, 1015-16 (Ind.Ct.App. 2023) (quoting Hill v. State, 773 N.E.2d 336, 342 (Ind.Ct.App. 2002), trans. denied), trans. denied. Further,
[a] defendant in a criminal case has a constitutional right under the Sixth Amendment to proceed without the assistance of counsel. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that "[t]he Sixth Amendment . . . implies a right of self-representation"). This right may be overridden if a defendant is not "able and willing to abide by rules of procedure and courtroom protocol." McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). The trial court is in the best position to assess whether a defendant has the ability and willingness to proceed pro se. See Edwards v. State, 902 N.E.2d 821, 824 (Ind. 2009); Poynter v. State, 749 N.E.2d 1122, 1128 (Ind. 2001).
* * *
[T]he United States Supreme Court has noted that "the right of self-representation is not a license to abuse the dignity of the courtroom." Faretta, 422 U.S. at 835 n.46, 95 S.Ct. 2525. The Indiana Supreme Court has likewise found that part and parcel of a defendant's right to represent himself is "the state's interest in preserving the orderly processes of criminal justice and courtroom decorum." Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 312 (1978) (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970);
German v. State, 268 Ind. 67, 373 N.E.2d 880 (1978)). In other words, a trial court may terminate self-representation by a defendant who deliberately engages in serious or obstructionist misconduct, German, 373 N.E.2d 880, or where the record shows that the defendant was abusing his pro se status as a means to engage in dilatory tactics or to distort the conduct of the trial. State v. Whalen, 192 Ariz. 103, 961 P.2d 1051, 1058 (Ariz.Ct.App. 1997) ....
In denying a defendant his right to self-representation, care should be taken to "ensure that the record reflect respect for all of defendant's rights" and, "to the extent possible, prevent the manipulative defendant from fashioning a record which seems to reflect an unconstitutional denial" of the right to counsel/self-representation. See Russell, 383 N.E.2d at 312. We do not find this to require that a trial court conduct a special inquiry, but nevertheless note that making a record to support the decision to terminate a defendant's self-representation would be beneficial for appellate review. We will review and consider the entire record to make sure the defendant's right to self-representation has not been violated.Love v. State, 113 N.E.3d 730, 738-39 (Ind.Ct.App. 2018), trans. denied.
[¶ 11] Luke maintains that he "did not interfere with the conduct of the criminal trial nor was his conduct calculated to delay the proceedings." Appellant's Br. at 15. But we agree with the State that the record speaks for itself. Luke blatantly violated the trial court's instruction that he not invite jurors to ask him questions; he refused to answer questions; and he repeatedly made references to an unsubstantiated claim that a witness had been accused of rape. In sum, Luke showed the trial court that he was not able and willing to abide by rules of procedure and courtroom protocol. See Luke, 214 N.E.3d at 1016. The trial court therefore did not violate Luke's right to represent himself when the court appointed standby counsel.
Issue Two: Sufficiency of the Evidence
[¶ 12] Luke next contends that the evidence is insufficient to support his convictions. Our standard of review is well settled.
When an appeal raises "a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses ...." We consider only the probative evidence and the reasonable inferences that support the [judgment]. "We will affirm 'if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.'"Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)).
[¶ 13] To prove Level 6 felony intimidation, the State was required to show that Luke communicated threats of forcible felonies to each victim. See Ind. Code § 35-45-2-1(b)(1)(A). Luke maintains that the "uncertain" testimony by the witnesses was insufficient to support his convictions. Appellant's Br. at 18. But Luke's argument is merely a request that we reweigh the evidence on appeal, which we will not do. Each of the victims testified that Luke made serious threats of violence against them.
[¶ 14] In particular, Correctional Officer Koller testified that, on January 16, 2024, Luke "began screaming" and "cussing" at her. Tr. Vol. 2, p. 72. Luke said to Koller,
[you] don't know who [I] know[] and [I] know[] a lot of people to send to [your] house to shoot . . . and kill [you] and [your] whole family....[You need] to learn to bow down [or I will] slit [your] throat when [I] see[ you].Id. at 73. Further, Correctional Officer Jackson testified that, on January 18, Luke said to him, "f*** you, you b****, mother f***er, I'll beat your ass, you know, come to my cell." Id. at 105. Jackson also testified that, later that same day when he and other correctional officers confronted Luke, Luke told them that
he had people on his payroll. He would find out where [the officers] lived. He would get [their] driver's license number[s], find out where [they] lived and send someone from Toledo to come down, put . . . gun[s] in [their] mouth[s], drag [them] out in [their] front yard[s] and kill [them].Id. at 107. The evidence was sufficient to support Luke's convictions.
Issue Three: Sentence
[¶ 15] Finally, Luke contends that his sentence violates Indiana Code section 35-50-12, which imposes a sentencing cap on convictions arising out of an episode of criminal conduct. "Episode of criminal conduct" means offenses or a connected series of offenses that are closely related in time, place, and circumstance. I.C. § 35-50-1-2(b). As our Supreme Court explained in Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002), "[i]n considering whether a series of offenses constitutes a single episode of criminal conduct," we emphasize "the timing of the offenses." "Citing the American Bar Association standard," our courts have considered the "simultaneous" and "contemporaneous" nature of the crimes which would constitute a single episode of criminal conduct. Id.
[¶16] Here, in its sentencing statement, the trial court found that,
pursuant to [Ind. Code §] 35-5[0]-1-2[,] Count I is distinct from Counts II and III. The Count I threat was communicated to a female officer, Ms. Koller, and occurred on a different day under separate circumstances and arose out of a distinct and separate episode of criminal conduct and under a separate set of facts than Counts II and III. The Count I threat was to a female officer in the jail regarding a request to do cleaning duties, who was not involved in the threats two days later in Counts II and III. The Court finds pursuant to 35-[5]0-1-2 that Counts II and III are closely related in time, place, and circumstance and as such, Counts II and III are limited to a combined sentence of four years.Appellant's App. Vol. 2, pp. 168-69.
[¶ 17] Luke maintains that, because the trial court denied his motion to sever Count 1 from Counts 2 and 3 for purposes of trial on the ground that each offense was related in time and circumstance, the court was required to also find that the offenses were an episode of criminal conduct for purposes of the sentencing cap. Luke is incorrect. As we stated in Slone v. State, 11 N.E.3d 969, 973 (Ind.Ct.App. 2014),
We note that the transcript of the April 16, 2024, hearing on Luke's motion to sever the charges is not included in the record on appeal.
Indiana Code section 35-34-1-9(a) provides that two or more offenses "may be joined in the same indictment or information . . . when the offenses: (1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." (Emphasis added). "Offenses may be sufficiently 'connected together' to justify joinder under subsection [Indiana Code section 35-34-1-9(a)(2)] 'if the State can establish that a common modus operandi linked the crimes and that the same motive induced that criminal behavior."' Craig v. State, 730 N.E.2d 1262, 1265 (Ind. 2000) (quoting Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind. 1997)).
. . . [W]hile the phrase "episode of criminal conduct" may involve somewhat similar language to Indiana Code section 35-34-1-9(a), "we decline to conflate the 'episode of criminal conduct' analysis for sentencing defendants with the 'single scheme or plan' analysis for charging them." State v. Dixon, 924 N.E.2d 1270, 1273 n.4 (Ind.Ct.App. 2010) (citing Deshazier v. State, 877 N.E.2d 200, 213 n.12 (Ind.Ct.App. 2007) (declining to apply "single scheme or plan" analysis to consecutive sentencing case), trans. denied). Keeping the distinction between Indiana Code section 35-50-1-2(c)(2) and Indiana Code section 35-34-1-9(a)(2) in mind, we conclude that the fact that the State sought to join the charges for trial does not prove that Slone's criminal actions arose out of a single episode of criminal conduct.
For these same reasons, we reject Luke's argument that the denial of the motion to sever meant that the trial court was required to find that all three offenses constituted an episode of criminal conduct for purposes of Indiana Code section 35-50-1-2. The evidence supports the trial court's determination that Count 1 was a distinct episode of criminal conduct from Counts 2 and 3, and the court did not err when it sentenced Luke.
Conclusion
[¶ 18] For all these reasons, we affirm Luke's convictions and sentence.
[¶ 19] Affirmed.
Brown, J., and Kenworthy, J., concur.